Nicholas Glading v Advizer Pty Ltd
[2025] FWC 3137
•20 OCTOBER 2025
| [2025] FWC 3137 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Nicholas Glading
v
Advizer Pty Ltd
(U2025/4577)
| DEPUTY PRESIDENT GRAYSON | SYDNEY, 20 OCTOBER 2025 |
Application for an unfair dismissal remedy – applicant dismissed on basis of alleged underperformance – valid reason for dismissal - dismissal not harsh, unjust or unreasonable- application dismissed
Mr Glading was employed in the position of Life Insurance Broker by Advizer Pty Ltd (‘Respondent’) from 11 September 2023 to 1 April 2025. The Respondent trades as Compare Club and is a distributor of life insurance.
Mr Glading was dismissed by the Respondent on account of alleged poor performance. Mr Glading contends that his dismissal was harsh, unjust and/or unreasonable. Mr Glading contended that the performance assessment was unfair or unreasonable for reasons including that it failed to take into account seasonal lulls, that sales leads were allocated unevenly, leads were of poor quality which undermined his ability to convert sales or for sales to stick, he was allocated low performing campaigns where the leads had been previously dialled on multiple occasions, he often had significant wait times in between calls and that the business model was flawed. Mr Glading argued that these matters, in combination, meant that he was unable to meet his sales targets. Mr Glading also argued that his final Performance Improvement Plan (‘PIP’) was lacking in specificity and clarity, that he was given no warnings that he might be dismissed and that he was dismissed despite meeting some of his targets during the PIP period. Mr Glading also relied on alleged procedural fairness deficiencies in the dismissal process. Mr Glading also argued that his dismissal was in retaliation for previous complaints and/or his carer’s responsibilities.
Essentially, the Respondent argued that Mr Glading had not met his sales targets over a sustained period of time leading to the implementation of two performance improvement plans. It submitted that even with additional support, regular coaching sessions and guidance provided during the second PIP process, Mr Glading had not met any of the three key performance areas for improvement. The Respondent says that the dismissal was substantively and procedurally fair.
Having considered the evidence filed and submissions made by the parties I have determined that Mr Glading’s dismissal was not harsh, unjust or unreasonable.
Mr Glading gave evidence on his own behalf and filed a witness statement. Mr Glading also called Mr Charles Ndibe, a Life Insurance Broker previously employed by the Respondent, as a witness. Ms Argyrous, Team Leader and Mr Glading’s direct manager, gave evidence on behalf of the Respondent as did Mr Lang, the General Manager Life Insurance of the Respondent, Ms Argyrous’ direct manager.
Mr Glading also tendered documents including:
a) An outline of arguments dealing with merits which included both evidence and submissions;
b) A bundle of documents including email correspondence, screenshots of internal exchanges, Mr Glading’s dismissal letter, his PIP dated 3 February 2025 and his contract of employment; and
c) A response statement/submission dated 16 July 2025 which included both evidence and submissions.
Mr Lang’s statement annexed various documents including:
a) A document showing quarterly records of all of the Life Insurance team employees’ talk time on the phone, total calls and application conversion rates from those calls between April 2024 to March 2025;
b) A document showing the number of leads and the lead types that Mr Glading was given in each month of his employment;
c) A document showing the number of leads and lead types given to Mr Glading and 6 other employees in the Life Insurance team; and
d) An overall summary of Mr Glading’s performance against his targets.
The Respondent also tendered documents including:
a) A document showing the percentages of sales targets met by the Respondent’s life insurance brokers for the period April 2024 to March 2025, anonymized aside from Mr Glading; and
b) A copy of Mr Glading’s Performance Improvement Plan dated February 2025, including Ms Argyrous’ notes.
Submissions
Mr. Glading filed submissions on 16 June 2025, submissions regarding his application for an order to produce documents on 15 July 2025, submissions in reply on 16 July 2025 and submissions on remedy on 16 June 2025. The Respondent filed its submissions on 8 July 2025.
The Hearing and Legal Representation
There being contested facts involved, the Commission is obliged by s.397 of the Act to conduct a conference or hold a hearing.
After considering the views of Mr Glading and the Respondent and whether a hearing would be the most effective and efficient way to resolve the matter, I considered it appropriate to hold a hearing for the matter (per s.399 of the Act).
The Respondent sought to be represented before the Commission by a lawyer. Mr Glading did not oppose the grant of permission.
Relevantly, s.596(1) of the Act provides that a party may be represented in a matter before the Commission by a lawyer or paid agent only with the permission of the Commission.
Section 596(2) provides that the Commission may grant permission for a person to be
represented by a lawyer or paid agent in a matter before the Commission only if:
(a) It would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or
(b) It would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or
(c) It would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.
The decision to grant permission is not merely a procedural step but one which requires consideration in accordance with s.596 of the Act. The decision to grant permission is a two-step process. First, it must be determined whether one of the requirements in s.596(2) has been met. Secondly, if the requirement has been met, it is a discretionary decision as to whether permission is granted.
On the question of representation, the Respondent submitted that permission to be represented ought to be granted on the following bases:
a) The matter will likely involve significant contests over both factual and legal matters, likely require detailed cross-examination of witnesses for both parties, and there will be significant contest about the extent to which most of the matters raised by Mr Glading are relevant to the Commission’s determination of the matter;
b) Legal representation will assist the Commission in dealing effectively and efficiently with the expected contests about the facts, allegations and claims, and the legal powers of the Commission; and
c) There is material complexity involved in the proceedings, and the hearing is likely to proceed more efficiently if the Commission is assisted by lawyers.
Having considered the submissions, I formed a view that this matter does have significant factual and legal complexity. I determined that allowing the Respondent to be represented by a lawyer would enable the matter to be dealt with more efficiently taking into account the complexity of the matter and decided to exercise my discretion to grant permission for the Respondent to be represented.
Consideration
Initial matters to be considered
Under s.396 of the Act, the Commission is obliged to decide the following matters before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code (the ‘Code’);
(d) whether the dismissal was a case of genuine redundancy.
There is no dispute between the parties, and I am satisfied on the evidence that:
a) Mr Glading’s application for unfair dismissal was made within the period required in s. 394(2) of the Act;
b) Mr Glading was a person protected from unfair dismissal;
c) Mr Glading’s dismissal was not a genuine redundancy; and
d) The Respondent was not a small business, and the Code did not apply to Mr Glading’s dismissal.
When can the Commission order a remedy for unfair dismissal?
Section 390 of the Act provides that the Commission may order a remedy if:
(a) the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed; and
(b) the Applicant has been unfairly dismissed.
I have already determined that Mr Glading was protected from unfair dismissal. However, both limbs of s 390 must be satisfied. I am therefore required to consider whether Mr Glading has been unfairly dismissed.
When has a person been unfairly dismissed?
Section 385 of the Act provides that a person has been unfairly dismissed if the Commission is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
There was no dispute that Mr. Glading had been dismissed or that the Code did not apply. Having already determined that his dismissal was not a case of genuine redundancy, I will turn to consider whether his dismissal was harsh, unjust or unreasonable.
Was the dismissal harsh, unjust or unreasonable?
Background
The factual background to the matter can be summarised as follows.
Mr Glading commenced employment with the Respondent on 11 September 2023 as a Life Insurance Broker on a full-time basis pursuant to a contract of employment. The Respondent is the largest distributor of life insurance in Australia, with 22,000 members receiving advice, and approximately $81 million of premiums paid per year. It is publicly known as Compare Club. The Respondent predominantly sells four types of insurance products: death benefits, trauma payments, temporary and permanent disability benefit and income protection.
Mr Glading’s role required him to:
a) Access a panel of Australia’s top 10 life insurance providers to offer comprehensive comparison services;
b) Contact leads to help Australians protect their families’ assets through the sale of life insurance products;
c) Achieve key sales metrics and targets to deliver the best outcomes for every lead;
d) Engage in meaningful, empathetic conversations while maintaining high compliance standards;
e) Possess a strong drive and motivation to succeed;
f) Have a proven ability to manage sales pipeline and consistently hit targets;
g) Demonstrate resilience, problem-solving skills and a “can do, will do” attitude; and
h) Have excellent communication skills and be a team player.[1]
During his employment Mr Glading first reported to Rebel Sevante. In or around November 2024, Mr Glading was moved to a different team and reported to Ms Argyrous.
The evidence discloses that Mr Glading did not meet his sales targets in 14 out of the 18 months that he was employed with the Respondent.[2]
Targets at the Respondent are set in accordance with remuneration, tenure, skills and experience. All brokers of the same remuneration, tenure, skills and experience are allocated the same target.[3]
In April 2024 Mr Glading was put on a PIP to end on 28 June 2024, as a result of his alleged consistent failure to meet his target sales and an alleged failure to provide customers with accurate information on life insurance related policies.[4] Whilst it was not communicated to Mr Glading formally at the time, he passed this PIP and continued on in employment with the Respondent. Notes on the PIP record that as at 1 June 2024 Mr Glading’s performance had improved as he had met $31,000 of a $35,000 in force target and $51,000 against a target of $54,000 in new applications.[5]
From November 2024 Mr Glading and Ms Argyrous had regular coaching sessions and conversations regarding Mr Glading’s performance against his performance targets as part of the usual management processes in place at the Respondent.
During the period July 2024 to January 2025 the Respondent’s records show that Mr Glading’s performance as against his targets was as follows:[6]
Month
Target
Actual
July 2024
$31,050
$13,086
August 2024
$29,700
$27,948
September 2024
$31,500
$24,784
October 2024
$18,856
$4,832
November 2024
$31,500
$51,713
December 2024
$22,500
$2,918
January 2025
$31,500
$4,287
On or around 2 February 2025 Mr Glading was put on a second PIP. The PIP came with a covering letter from Ms Argyrous, which included the following:[7]
“The purpose of this performance improvement plan (PIP) is to clarify expectations of your position, document performance issues that are preventing you from meeting those expectations and give you the opportunity to address those issues and raise your performance to meet expectations.
Commencing from 03/02/2025, you are being placed on a performance improvement plan to address the performance improvement areas outlined on the following page/s. Over the next 8 weeks, you are expected to constructively address these areas and meet all expectations for performance. I will meet with you weekly to review your progress, offer guidance, and provide feedback on your performance to assist you to achieve these expectations.
Should you fail to meet the expectations set within this plan by 31/03/2025 without a reasonable explanation, you may be subject to disciplinary action, up to and including the termination of your employment, and the plan may be extended. Furthermore, failure to maintain performance expectations beyond the completion of the plan may result in further disciplinary action.
If you have any questions about your performance improvement plan, or if you identify any gaps within your skill set that prevent you from meeting the expectations of your plan, please contact me immediately to discuss.
I look forward to working with you to achieve the required improvements in your performance.”
The PIP set out the following examples of unsatisfactory performance:[8]
“Target VS Actual [sales targets]
Jul - $31,050 - $13,086
Aug - $29,700 - $27,948
Sep - $31,500 - $24,784
Oct - $18,856 - $4,832
Nov - $31,500 - $51,713
Dec - $22,500 - $2,918
Jan - $31,500 - $4,287”“To be more honest and upfront if you need help to call it out to me. Tone – even when you’re feeling flat, hype it up to get clients engaged and selling the product.”
“To stay focused on not asking for the business but being assumptive to get the business. In coaching we have listened to you have not assumed the sale and just emailing the info out (we should assume the sale if we have sold it correctly).”
In addition, the PIP included the following expected performance under the heading “What’s the expected performance/behaviour?”[9]
· “To hit both targets on a consistent basis instead of missing more then hitting;”
During the period of the second PIP Mr Glading and Ms Argyrous had weekly coaching sessions. Ms Argyrous’ notes of these meetings were not shared with Mr Glading. During these meetings Ms Argyrous provided Mr Glading with feedback including listening to calls together and discussing ways to improve, providing additional training on soft skills, call wrapping, objection handling and question-asking and adopting an assumptive approach to customers (being a change in emphasis in the language used).
During the second PIP the Respondent’s records show that Mr Glading’s performance as against his targets was as follows:[10]
Month
Target “in force” Policies
Actual
February 2025
$30,000
$30,584
March 2025
$31,500
$21,380
Month
Target “Applications”
Actual
February 2025
$48,103
$39,682
March 2025
$50,508
$25,338
Prior to 1 April 2025, Ms Argyrous proposed to Mr Glading that a meeting would be held on 1 April 2025 regarding his performance.
On 1 April 2025 at 11:33AM, following cessation of the second PIP, Mr Glading raised concerns with Ms Argyrous regarding:[11]
· Being provided with a low number of new leads, with barely any in the leads not answered (“LNA”) 1-6 range;
· Having been assigned campaigns that were heavily weighted toward LNA 12-19, with the reduced probability of converting a lead once the LNA range is beyond 1-3;
· A high number of leads being in the LNA 10-19 range with the reduced likelihood of converting a lead once the LNA range has passed 6;
· Hunting season failing to produce quick wins or significant results;
· Mr Glading’s campaign focus for the last 4-5 months having been on LNA 12-19, having made it difficult to meet or exceed targets.
Later that day, Ms Argyrous and Mr Glading had a meeting to discuss Mr Glading’s performance. The recollections of Mr Glading and Ms Argyrous regarding what was said at this meeting differ. However, it is clear that Mr Glading was told that he was being dismissed for performance reasons. Mr Glading’s evidence was that he raised his concerns that he was not getting good leads and that this compromised his ability to meet targets and concerns about how the dialler was allocating work, and these concerns were not meaningfully addressed.[12] Mr Glading also gave evidence that he received no written warnings prior to his dismissal, was given no notice of the dismissal meeting, given no opportunity to respond to the performance concerns and not offered a support person during his dismissal.[13]
On 2 April 2025 Mr Glading received a letter confirming his dismissal. The dismissal letter includes the following:[14]
“Over the last 8 weeks since 3/2/2025, you have been on a PIP, which was implemented with the intention to support and improve your performance against the primary Key Performance indicators (KPI’s) in the team – Consistency in hitting sales target, proactively asking for support as required to achieve the targets, and staying focused on not asking for the business but by being assumptive to get the business with customers on the phone.
Unfortunately, over this 8 week PIP period, you did not meet any of the three key performance areas for improvement.
During the meeting on 1/4/2025, when asked for comments and an explanation of your underperformance you stated the following:
·Campaigns aren’t good in your opinion and you weren’t happy with the leads we get;
·That your low premium was a reflection of the quality of the leads;
·That the likelihood of lead no answer (LNAs) 6 was unlikely to covert to a sale;
·That I have been helpful in giving you all the support you could have needed and were appreciative and grateful for my support.
When considering the appropriate disciplinary action to take, the Company considered:
·Our coaching sessions were held once a week for the last 8 weeks;
·Our monthly one on one’s to track your performance against targets and what we needed for the next month;
·The components and outcome of the previous PIP that you were on when you were in Rebel’s Team last year.
·We had moved you into another team to increase your skills to see whether your initial team leader was not the right learning style for you.
You were previously advised in writing as part of your PIP that if you failed to meet the minimum expectations required, that you would be subject to disciplinary action up to and including the consideration of termination of your employment.
Consequently, it is not appropriate to continue you in your role and this letter confirms what was communicated to you in yesterday’s meeting, that your employment with the company is terminated effective immediately 1/4/2025. You will not be required to work out your notice, and will be paid 2 weeks’ pay in lieu of notice.”
Mr Glading was paid two weeks in lieu of notice.
Submissions
Was the dismissal harsh, unjust or unreasonable?
Section 387 of the Act provides that the Commission must take into account, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.
I am required to consider each of these criteria, to the extent that they are relevant to the factual circumstances before me.[15]
I set out my consideration of each below.
Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct
(s 387(a))?
Valid reason for dismissal
Evidence and submissions of the Applicant
Mr Glading submits that there was no valid reason for his dismissal. Mr Glading submits that the targets/Key Performance Indicators (KPIs) provided by the Respondent were unrealistic and did not reflect market reality. He also submitted that his ability to perform was affected by his being allocated recycled, low-quality leads and poor campaign design. The leads were said to be low quality for reasons including that they were disabled, hostile, unemployed or low-income earners or were too unwell to have a life insurance policy written. It was also said that many of these leads had been called many times and were unlikely to yield a sale,[16] the majority of the time the leads he worked with ‘rendered only a very small premium due to the type of campaigns’ he was on,[17] and that the quality of his leads meant that he was unable to achieve his sales targets.[18]
Mr Glading’s evidence was that someone in management of the Respondent could, and did, allocate leads to specific brokers and that he could not get enough people on the phone to meet his targets.[19] His evidence was that he had noticed that his new leads were minimal, being leads in the “LNA 1-6” range, and the campaign he was assigned to was heavily weighted towards the “LNA 12-19” range, with most coming through to him between the “LNA 10-19” range. His evidence was that he had raised this with Ms Argyrous as contributing to his difficulty in meeting his targets and requested it be reviewed.[20] Mr Glading also submitted that there was a performance versus profitability misalignment with substantive clawbacks arising from high policy cancellation rates and that despite this, targets remained unchanged and no adjustments were made to reflect cancellations or profitability concerns.[21]
Mr Glading also gave evidence that he had been structurally disadvantaged by other sales staff being assigned to higher performing dialler campaigns such as Income Protection and Cross-Sell which yielded higher conversions and not being assigned to campaigns such as the “Self-Employed” campaign which yielded higher premiums. Under cross-examination Mr Glading said that he did not remember getting any income protection leads despite the records of the Respondent indicating that he had.[22]
Mr Glading did not contest the accuracy of the figures contained above at [32] and [37] but said that he had achieved approximately half his targets during the PIP period and that given this, his PIP should have been extended. He also gave evidence that he often had significant wait times in between calls.[23]
Mr Glading also submitted that the PIP contained vague metrics, no measurable success metrics and he was not provided with clarification on what constituted a pass or fail.[24] His evidence was that whilst he had weekly catch-ups with Ms Argyrous that the sessions were largely procedural and ineffective with no real effort made to support his development during this period. His evidence was that he received no formal documented progress tracking updates or structured feedback. He also argued that the PIP had been imposed following a low-sales holiday lull over December and January.
Mr Charles Ndibe, a former colleague of Mr Glading, who no longer works for the Respondent gave evidence in support of Mr Glading. Mr Ndibe worked in a different team to Mr Glading. Mr Ndibe’s evidence was that he had observed consistent inequities in dialler campaign allocations, with he and Mr Glading often being excluded from campaigns which offered significantly better opportunities and higher premiums.[25] He also gave evidence that Mr Glading had also raised concerns with him that the leads that they were provided were of poor-quality.[26] Mr Ndibe had observed similar quality concerns with the leads he had been provided, and noted high wait times, and a high proportion of ‘voice mail heavy’ leads.[27] He also gave evidence that he had observed considerable clawbacks in the business.[28]
Mr Glading submits that his dismissal may have been responsive to the complaints that he made via email on the morning of 1 April 2025 given the close temporal proximity to his dismissal.[29]
Evidence and submissions of the Respondent
Mr Lang gave evidence that customers respond to advertisements of the Respondent and then receive a call back from the sales team. These are referred to as ‘leads’. Less complex leads are given to junior advisers (referred to as ‘freshmen’) and more complex leads will be given to more senior advisers. After 6 months in the role, in around March 2024, Mr Glading was categorised as a ‘varsity’ level adviser.
A sales adviser, like Mr Glading, converts the lead into a sale by giving a quote, being engaging, answering questions well and being able to successfully give the customer sufficient information to enable them to agree to make an application for life insurance. The adviser then goes through an application process with the customer before submitting the application to an underwriter. Mr Lang’s evidence was that these calls could take approximately 40-50 minutes each. Brokers will spend approximately half their day on the dialler talking to customers and the other half of the day dealing with underwriters and insurers as well as managing the customer relationship.[30]
Mr Lang’s evidence was that leads get allocated based on whether a broker is a freshman or varsity level employee and that Targets/KPIs are also set based on the level of the employee. Mr Lang also gave evidence that there were no skills based lead routing within the categories and that leads are allocated randomly by the Respondent’s ‘dialler’.[31] The dialler is a Customer Reference Management tool. After customers make an online enquiry, their information is loaded into the dialler. Contact with the customer is then made by the broker through an outbound call.
The targets for brokers are set by the number of contacts made and how many are converted into a sale. These increase over time, along with the experience of the broker in the role. Targets are set in accordance with a broker’s remuneration, tenure, skills and experience. All brokers of the same remuneration, tenure, skills and experience are allocated the same target.[32]
Performance is, in part, measured on the number of sales compared with the number of leads that a broker gets. The two Targets/KPIs that related to Mr Glading were:[33]
a) policies submitted to the insurer (i.e. applications made); and
b) policies that went in force with the insurer (i.e. policies that the customer proceeded with to completion).
Mr Lang’s evidence is as follows:[34]
a) Mr Glading was given leads that were commensurate to his experience and equivalent to other advisers who had similar experience to Mr Glading;
b) Mr Glading’s leads were no different in either their volume or quality to his colleagues within the life insurance team including those with a similar amount of experience as him;
c) Mr Glading took more of those leads off the dial and his output was 70% less than his colleagues who had less leads off the dial;
d) there are instances where Mr Glading was provided with leads on campaigns which he says are “favourable”.
Evidence filed by Mr Lang demonstrated that Mr Glading had low conversion rates when compared to his peers. The Respondent also filed evidence demonstrating that Mr Glading had been allocated over 200 ‘income protection’ leads and that this campaign is not an additional campaign but a ‘substitutive’ campaign. That is, these are not additional leads beyond the normal leads that a broker is allocated. In addition, Mr Lang’s evidence, undisturbed by cross-examination, was that these leads have low conversion rates (as does the cross-sell campaign).[35]
Mr Lang and Ms Argyrous also gave evidence that Mr Glading was not assigned campaigns heavily weighted to older leads. Ms Argyrous’ evidence was that dialler assignment is random but the leads assigned are equal.
The Respondent submits that Mr Glading’s performance throughout his employment provided a valid reason for the dismissal. It is argued that, out of 18 months, Mr Glading failed to meet sales targets for 14 of the months, despite tailored training, formal and informal support, a change in direct manager and two separate performance improvement plans.
The Respondent submits that concerns about an employee’s performance go to their capacity to perform the role and that this is a reference to an employee’s ability to do the work they are employed to do. If an employee does not have the ability to do their job, this is a valid reason for dismissal.[36] They submit that an inability to perform the inherent requirements of a job is generally a valid reason for the dismissal.[37]
The inherent requirements of Mr Glading’s role are outlined at [26] above. Mr Glading did not cavil with these. The Respondent drew the Commission’s attention to, in particular, the duties contained in sub paragraphs [26] (c) and (f), of ‘achieving key sales metrics and targets’ and ‘having a proven ability to consistently hit targets’. Mr Lang gave evidence which demonstrated that Mr Glading’s conversion rates from calls made and ‘talk time’ were low compared to his colleagues.[38] The Respondent also provided the number of leads and lead types provided to Mr Glading, as well as the leads and lead types provided to his colleagues in the Life Insurance Team with comparable experience, and submitted that these were similar in quantity and category of lead.[39] The Respondent provided consolidated evidence of Mr Glading’s performance, which demonstrated his failure to meet sales targets in 14 out of the 18 months between October 2023 to March 2025.[40]
The Respondent relied on evidence which set out Mr Glading’s performance against his targets during the period from April 2024 to March 2025 and which contained the same data for the rest of the Life Insurance Team.[41] That evidence demonstrated that Mr Glading had met this target three times during the relevant period (including in February 2025), had been within ten percent of meeting target on another two occasions and that his average performance against target was 67%. In February 2025 over 63% of employees met their target and in March 2025 60% of employees met their target. The evidence also discloses that, at 67%, Mr Glading had the equal second lowest average percentage of meeting his target of all brokers in his cohort.
The Respondent also submitted that Mr Glading had been given one on one coaching and guidance on how to improve his sales with informal support and structured formal support by way of two PIPs. Evidence was provided of the content of the meetings between Mr Glading and Ms Argyrous to demonstrate the support and training provided.[42] The Respondent submits that despite these efforts Mr Glading continued to demonstrate unsatisfactory performance and did not have the capacity to perform his role as a Life Insurance Broker.
In reply, Mr Glading submitted that the Respondent relied heavily on recycled leads, which were dialled multiple times before Mr Glading had access to them, with allocated leads of LNA 8 - LNA 19 being higher than units of new leads allocated. Mr Glading also notes the conversion rates provided by the Respondent for his performance in February and March 2024 of 18.6% and 13.7% respectively are in line with or better than multiple other brokers who were not subject to the same disciplinary action, and that no minimum benchmark is provided.[43] He also submitted that the PIP was deficient and/or incomplete. Finally, Mr Glading submitted that he was not offered a support person to attend the termination meeting with the Respondent.
Conclusions on whether there was a valid reason for the Applicant’s dismissal.
The Respondent argues that there was a valid reason for the dismissal of Mr Glading based on his performance. Mr Glading says that there was no valid reason for the reasons outlined at [45]-[48] and [66] above.
In order to be a valid reason, the reason for the dismissal should be ‘sound, defensible or well founded’ and should not be ‘capricious, fanciful, spiteful or prejudiced’.[44] However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[45]
In cases relating to alleged conduct, the Commission must make a finding, on the evidence provided, whether, on the balance of probabilities, the conduct occurred.[46] The employer bears the evidentiary onus of proving that the conduct on which it relies took place.[47] The reason for a dismissal may not be valid because the alleged conduct did not occur or because, if it did occur, it did not justify a dismissal.[48]
Where an employee has been dismissed as a result of issues relating to their capacity, including reasons relating to their ability to perform their role,[49] and the parties are in dispute about whether the employee possessed the requisite capacity to perform their job, the Commission must resolve this issue as a matter of fact.[50]
The test is not whether an employee was working to their personal best, but whether the employee was performing satisfactorily or fulfilling a key requirement of their position which was reasonable in the circumstances when looked at objectively.[51]
An employee is required to comply with the lawful and reasonable directions of their employer.[52] Effectively, Mr Glading argues that the targets/KPIs or performance criteria applied to him were unreasonable and any requirement to comply with them was also unreasonable.
In CFMMEU v Mt Arthur Coal Pty Ltd,[53] the Full Bench considered the concept of reasonableness, as follows:[54]
“Reasonableness is “a question of fact having regard to all the circumstances” and that which is reasonable in any given circumstance may depend on, among other things, the nature of the particular employment. The approach to the task of assessing the reasonableness of a direction to an employee was identified by Dixon J in Darling, as follows:
“But what is reasonable is not to be determined so to speak, in vacuo. The nature of the employment, the established usages affecting it, the common practices which exist and the general provisions of the instrument, in this case an award governing the relationship, supply considerations by which the determination of what is reasonable must be controlled. When an employee objects that an order, if fulfilled, would expose him to risk, he must establish a case of substantial danger outside the contemplation of the contract of service.”
The Respondent bears the evidentiary onus of establishing a valid reason for dismissal as it is required to adduce the evidence necessary to establish that there was a valid reason for Mr Glading’s dismissal.[55]
I do not accept that the targets/KPIs were inherently unreasonable, nor that the requirement to comply with them was unreasonable. Given that the Respondent’s business is selling life insurance it is fundamentally important that sales targets are achieved consistently. For the first month of employment, brokers are engaged solely in classroom learning/training and do not have to meet any targets. Targets are set by reference to a broker’s remuneration, tenure, skills and experience and scale up gradually over time along with an employee’s experience in the role (even if a broker has prior experience). Mr Glading’s evidence was that he was an experienced broker even before he commenced with the Respondent. I accept that targets do not have to be met every time and it is clear that the Respondent’s employees do not meet them all the time. Mr Glading rightly notes that the majority of employees did not meet their targets in December 2024 and January 2025. He says that this demonstrated a “seasonal lull”, a team under “distress” and that he was part of the norm. This was immediately preceding Mr Glading being put on a PIP. Mr Lang gave evidence that people hit and miss targets and acknowledged that people go up and down in meeting targets. However, his evidence was that if “people miss targets consistently then they will be performance managed.”[56]
Mr Glading gave evidence that he is aware of substantial clawbacks and made submissions that this demonstrates that the Respondent’s targets were unreasonable. That evidence was based on documents that Mr Glading and Mr Ndibe had ‘reviewed’. The evidence of Mr Glading and Mr Ndibe was vague on this issue. Mr Lang disputed the characterisation of the “clawback” figures referred to in the evidence of Mr Glading and Mr Ndibe and said that they were referring to a proportion of cancellations of policies of part of a total annual premium of $82 million, which was within the Respondent’s forecast and the industry norm. The relevance of the clawbacks to targets or Mr Glading’s performance against targets was not fully articulated before me and I do not consider that the evidence establishes that the existence of clawbacks or cancellations demonstrates that the targets set by the Respondent were unreasonable. To the contrary, I consider that the targets/KPIs were reasonable.
Exhibit R-1 records that the median performance against targets of brokers in Mr Glading’s cohort during his employment was approximately 90% and the average performance was over 90% (with an outlier top performer excluded) or over 121% (with the outlier performer included).[57] However, Mr Glading’s performance during his employment was, on average, worse than all of his colleagues, bar one.[58] Whilst I accept that a lower proportion of brokers met targets in December 2024 and January 2025; averaged across his employment Mr Glading only met 67% of his monthly targets during the period April 2024 to March 2025.
Mr Glading does not dispute that he failed to meet all of his targets on 14 months of his 18-month employment.[59] Instead, he attributes his performance to poor quality leads and customers, inequitable campaign distribution and a flawed business model.
Achievement of targets was a fundamental element of Mr Glading’s role. It was a requirement of his role that he ‘achieve key sales metrics and targets to deliver the best outcomes for every lead’ and ‘consistently hit targets’. Mr Glading accepted that he had been told that it was a requirement of his role to meet monthly targets and that he was aware of the targets that he had to meet.
Whilst he worked hard on improving his performance during the PIP period and met some of his targets, the evidence shows that he did not meet all of his targets and I think it reasonable for the Respondent to form a view that he would not meet the minimum performance expectations going forward, given his performance since commencement. Mr Glading submits that the PIP should have been extended. However, I am also satisfied that a two-month period is a reasonable time for Mr Glading to demonstrate a consistent ability to meet the targets and performance standards as set out in the PIP. Unfortunately, he was not able to do so.
I accept that Mr Glading and Mr Ndibe genuinely believe that Mr Glading was allocated poor campaigns or poor-quality leads as compared to other employees. However, this was not borne out by the evidence. Ms Argyrous was steadfast under cross-examination that brokers were on the same campaigns, the dialler randomly allocated leads, brokers had the same queue positioning and that Mr Gladings’s leads were comparable to his colleagues in quantum and nature. In relation to campaign allocation, her evidence, which I accept, was that brokers in the team were allocated to the same campaign, dialling speed was consistently set across all brokers and could not be adjusted by individual broker.[60] Her evidence was that it was technically impossible for different brokers to have different dialler speeds (for calls to drop in) or different queue positioning. Her evidence was also that the demographics and potential value of potential customers were not part of the settings for client leads (other than when an age-based campaign was run where all brokers would have the same campaign). Whilst I can readily accept that leads that have already been called 13 to 20 times are less likely to be converted, the evidence does not establish that Mr Glading was given more of these than most of his other colleagues.[61] Indeed, the evidence discloses that over 40% of Mr Glading’s leads during his employment were new leads (and when combined with Income Protection LNA 4-8 and LNA 5-8, this amounts to approximately 59% of his leads).[62]
Whilst Mr Glading contends that the PIP was procedurally flawed, and that he did not know what constituted a pass or fail for the purposes of the PIP, I do not accept this submission. I consider that it was clear that he had to “hit” his targets. This language is capable of only one meaning. That is, that Mr Glading had to meet or exceed his “in force” and “applications submitted” targets. Under cross-examination Mr Glading properly conceded that everybody was moving on the common assumption that the target to hit was 100%. I find that the metrics were discussed repeatedly in meetings between Ms Argyrous and Mr Glading including how Mr Glading was performing against the targets. The Respondent tendered evidence recording the content of the weekly meetings held between Ms Argyrous and Mr Glading. The feedback notes contained in this document had not been previously provided to Mr Glading in writing. However, I accept that they reflect Ms Argyrous’ recollections of these meetings. These notes demonstrated that Ms Argyrous and Mr Glading listened to calls and went through feedback and areas for improvement, identified positive improvements and matters to continue to work on and discussed being more “assumptive”. Ms Argyrous and Mr Glading worked through Mr Glading’s overdue action items and any barriers to matters being actioned, discussed sales against targets (both applications and in force policies), listened to calls of other colleagues and discussed key takeaways from these, and did roleplays. Whilst Mr Glading was not given written feedback each week, I do not consider that this is required in order for a performance process to be fair or reasonable. I find that the PIP process was structured, with weekly meetings held, and formal feedback, coaching and training was provided by Ms Argyrous to Mr Glading.
Ultimately, I consider that Mr Glading was doing his best to perform in his role. He came across as a hardworking, decent and considered man who had been earnestly endeavouring to meet his targets, in circumstances that he found difficult. However, on the balance of probabilities, I find that the main focus of his role was to sell life insurance, his targets/KPIs and objectives were clear and he did not meet them. He was at the lower end of the performers in the Life Insurance team in terms of his sales and when assessed objectively, was not performing satisfactorily. I have previously dealt with the reasonableness of the targets/KPIs set by the Respondent at [75]. In failing to consistently meet his targets/KPIs, Mr Glading was not fulfilling a key requirement of his position. I am not persuaded that this failure was due to external factors. Ultimately, I consider that Mr Glading’s failure to meet targets/KPIs was due to a lack of capacity or ability to perform the role. Effectively, whilst I am sure that he would be a good employee in different circumstances, the sales environment and culture at the Respondent was not one he could, or did, thrive in.
I am satisfied that in all the circumstances a valid reason exists for the dismissal relating to Mr Glading’s capacity. I consider that the Respondent had a sound, defensible or well-founded reason to terminate Mr. Glading’s employment. This weighs against a finding that his dismissal was harsh, unjust or unreasonable.
Was the Applicant notified of the valid reason?
Proper consideration of s.387(b) requires a finding to be made as to whether the Applicant ‘was notified of that reason’. Contextually, the reference to ‘that reason’ is the valid reason found to exist under s.387(a).[63]
Notification of the reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment,[64] and in explicit,[65] plain and clear terms.[66]
I have found that the valid reason for Mr Glading’s dismissal was his unsatisfactory performance as a Life Insurance Broker.
Mr Glading gave evidence that he was told early on his employment that he had to meet his targets. His evidence was that he understood that it was a possibility that if he didn’t meet his targets that he would be dismissed but he was not told it would be an instant termination.
I am satisfied that during the two-month PIP process (and even before that) Mr Glading was notified in clear and unambiguous terms, that his performance was not meeting the Respondent’s expectations.
Then on 1 April 2025, Ms Argyous, had a meeting with Mr Glading to discuss his performance. Mr Glading accepted that he understood, at the termination meeting, that he had to achieve 100% of both sales targets as part of his PIP.
Mr Glading’s evidence was that he was called into a private office by Ms Argyrous without an indication that he was going to be dismissed as a result of his performance and told that he and the Respondent were going to part ways. Mr Glading says that he raised concerns regarding procedural deficiencies in the PIP process at the meeting, including that he wasn’t given any written warnings that he might be dismissed during the PIP process. He had also sent an email earlier that day raising his concerns with the leads that he had been receiving and the impact of those leads on his performance.
Mr Glading gave evidence that he was given an opportunity to respond to the ongoing performance concerns in that meeting.[67] He did so. His evidence was that he told Ms Argyrous why his performance appraisal under the PIP was unfair including that the leads were poor quality.[68] Ms Argyrous gave evidence that she told him that he had not completed his second PIP and that the Respondent was “proposing to terminate his employment for poor performance”. Her evidence was that she then considered Mr Glading’s responses prior to verbally communicating that the Respondent would be dismissing him as a result of his performance.[69] Mr Glading’s recollection was that she communicated that he had not been successful on meeting his PIP and offered him an opportunity to respond. Ms Argyrous told Mr Glading in the meeting that he was on the same campaigns as others. Mr Glading’s recollection appeared a little confused about the order of events in this meeting and, overall, I prefer the evidence of Ms Argyrous in relation to this meeting.
I am satisfied that Mr Glading was notified of the reasons for his dismissal. This weighs against a finding that his dismissal was harsh, unjust or unreasonable.
Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct?
An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment.[70]
The opportunity to respond does not require formality and this factor is to be applied in a common-sense way to ensure the employee is treated fairly.[71] Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.[72]
The evidence of Ms Argyrous regarding the 1 April meeting was as follows:[73]
“At 3.30 pm on 1 April 2025, I met with Mr Glading in person. He did not ask for, or bring a support person to this meeting. In this meeting, I outlined that Mr Glading had not successfully completed his second performance improvement plan. I told him that as a result, the business was proposing to terminate his employment for poor performance. I then gave Mr Glading an opportunity to respond. Instead of acknowledging his poor performance, Mr Glading told me that the reason he had not met his performance targets consistently was because of the type of leads that he had been given. Mr Glading appeared focused on blaming the dialler (the dialler is the system that allocates leads to agents at random) for his poor performance.
Based on my experience and understanding of Mr Glading’s performance since at least November 2024, I knew that it was not true that Mr Glading had underperformed due to allocation of leads through the dialler.
After taking Mr Glading’s responses into account, I offered Mr Glading the opportunity to take a break and bring a support person to the meeting. Mr Glading declined my offer of a break and a support person.
I then told Mr Glading that the decision had been made to terminate his employment for poor performance.”
Mr Glading’s evidence was that Ms Argyrous did offer him an opportunity to respond in this meeting, which he did,[74] however she did not offer him a break.[75] He also gave evidence that the situation felt as if the decision to terminate his employment had already been made when he was placed on the Performance Improvement Plan in February 2025 and “it was just a matter of making the paper trail.”[76] Ms Argyrous denied this in cross-examination, giving evidence that it was not her intention to go down the dismissal path and that she wanted Mr Glading to succeed given their personal friendship.[77]
Having considered the evidence I find that Mr Glading was provided an opportunity to respond to the information from Ms Argyrous that the Respondent was considering terminating his employment for poor performance. Notwithstanding his concerns with the quality of leads he received, Mr Glading would have been aware the Respondent was unhappy with his performance and it is reasonable to assume that Mr Glading knew his employment would not continue indefinitely without an improvement in his performance.[78] This weighs against a finding that Mr Glading’s dismissal was harsh, unjust or unreasonable.
Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal?
Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.
There is factual contest as to whether Ms Argyrous offered Mr Glading the opportunity to bring a support person to the meeting of 1 April 2025. Ms Argyrous says that she did. Mr Glading says that she did not. Ultimately, I do not need to resolve this issue as the relevant consideration is not whether a support person was offered but whether one was unreasonably refused. There is no evidence that Mr Glading requested a support person to assist at any discussions relating to his dismissal.
This means that the Respondent did not unreasonably refuse to allow Mr Glading to have a support person. Accordingly, s 387(d) is a neutral factor in relation to the question of whether Mr Glading’s dismissal was harsh, unjust or unreasonable.[79]
Was the Applicant warned about unsatisfactory performance before the dismissal?
A mere exhortation for an employee to improve their performance would not be a sufficient warning. A warning must:[80]
· Identify the relevant aspect of the employee’s performance which is of concern to the employer; and
· Make it clear that the employee’s employment is at risk unless the performance issue identified is addressed.
Mr Glading cross-examined the witnesses of the Respondent regarding whether he was given any verbal or written warnings about unsatisfactory performance prior to his dismissal. Ms Argyrous’ evidence was that when the PIP was established that Mr Glading had not requested written confirmation of the various performance catchups, coaching sessions and weekly catchups as each party was happy to use their own hand written notes to reflect the substance of these meetings.[81] Mr Glading disputes that this agreement was reached. I accept that no written updates or meeting summaries were provided to Mr Glading during the PIP process. Ms Argyrous gave evidence that there were at least three to four conversations with Mr Glading about the possibility of termination due to his performance in the PIP, and that on one such occasion in early March 2025 both Ms Argyrous and Mr Glading said if “we didn’t hit target this month, that it would result in termination” and that “it was discussed on the 30th or 31st that we needed you to hit target and what’s why we extended your termination conversation to the 1st so you had ample time…”[82]
Mr Lang’s evidence was that the PIP was very clear that the Respondent needed to see Mr Glading’s ability to hit target, and that “inconsistency, i.e. meeting one month out of three would…force the decision that we made. And we were very clear with that, with you.”[83] Mr Glading’s submissions were that he had not been given a proper warning and that he was not provided with structured updates or clear performance benchmarks throughout the PIP.
The Respondent filed evidence demonstrating that the Respondent’s concerns about Mr Glading’s performance had been raised with him as early as April 2024 when he was given extra training and guidance, when he was put on his first PIP between April to June 2024, in a conversation between Mr Lang and Mr Glading in October 2024, through implementation of a Quality Assurance Improvement Plan in October and November 2024, through informal coaching sessions with Ms Argyrous from November to February 2025 and between February to March 2025 during the PIP which had specific and measurable objectives for Mr Glading to meet. On 27 March 2025, Ms Argyrous met with Mr Glading reminding him that the end of his PIP was fast approaching and offered to delay meeting with him regarding his performance as measured against his PIP targets until 1 April 2025 so that any leads converted on 31 March 2025 would be accounted for in his performance assessment.
In addition, the cover letter of the PIP included the following:[84]
“Should you fail to meet the expectations set within this plan by 31/03/2025 without a reasonable explanation, you may be subject to disciplinary action, up to and including the termination of your employment, and the plan may be extended. Furthermore failure to maintain performance expectations beyond the completion of the plan may result in further disciplinary action.”
I find that Mr Glading was given warnings regarding his unsatisfactory performance and the consequences of continued performance deficiencies. The most explicit of these is the warning excerpted in the preceding paragraph although I acknowledge that this correspondence also flagged that the PIP might be extended. However, I consider that the Respondent went to great efforts to provide Mr Glading with warnings and feedback regarding his performance. This weighs against a finding that Mr Glading’s dismissal was harsh, unjust or unreasonable.
To what degree would the size of the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?
Mr Glading and the Respondent filed no evidence and made no submissions in relation to this consideration.
The Respondent is a large business, and I do not consider that the size of its operations would have been likely to have any significant impact on the procedures followed in effecting Mr Glading’s dismissal. Neither party submitted that the size of the Respondent’s enterprise was likely to impact on the procedures followed in effecting the dismissal. Accordingly, this factor is not a relevant consideration.
To what degree would the absence of dedicated human resource management specialists or expertise in the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?
Mr Glading and the Respondent filed no evidence and made no submissions in relation to this consideration.
I cannot determine, on the evidence, whether there was an absence of dedicated human resources specialists or expertise in the Respondent’s enterprise. Neither party submitted that an absence of dedicated human resource management specialists or expertise in the Respondent’s enterprise impacted on the procedures followed in effecting the dismissal. Accordingly, this factor is not a relevant consideration.
What other matters are relevant?
Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.
Mr Glading’s evidence or submissions also raised matters such as:
(a) An argument that the termination was in retaliation for complaints about the quality of his leads (and in particular the 1 April 2025 email);
(b) That he was dismissed and/or denied a flexible working arrangement due to his responsibilities as a parent; and
(c) Various issues arising in the workplace including the behaviour of other employees of the Respondent that was said to be inconsistent with legal, compliance and regulatory requirements. This included safety and discrimination obligations: including misconduct and bullying behaviours of various colleagues, racial insensitivity, berating and pressuring of staff by Mr Lang, Ms Argyrous using ‘sexually suggestive language’ and the harsh treatment of visa-sponsored staff.
Ultimately, the relevance of these matters to the dismissal was not substantively dealt with by Mr Glading at the hearing of this matter. A submission was made that the issues summarised at [113](c) demonstrated inconsistency in treatment. However, there was no evidence before the Commission about what action, if any, was taken or not taken against various people who may have misconducted themselves or acted inappropriately. The Respondent denied these allegations and said that, in any event, they were irrelevant to the Commission’s consideration. In part, I agree and make no findings. However, a dismissal being in retaliation for the making of complaints or protected disclosures or as a result of someone’s carer’s responsibilities can be a relevant consideration in an unfair dismissal claim. That said, I accept Ms Argyrous’ evidence that any complaint made by Mr Glading was not a factor in the decision making. I also accept her evidence that Mr Glading’s carer’s responsibilities did not play a part in the decision to dismiss Mr Glading. Ms Argyrous was not cross-examined about these allegations made by Mr Glading and I make no finding that the dismissal was reprisal action or related to Mr Glading’s carer’s responsibilities.
Mr. Glading contends that his dismissal lacked procedural fairness. Effectively he argues that he was denied ‘a fair go all round’ during the PIP process. Deprivation of procedural fairness may render a dismissal unfair even where circumstances otherwise justify dismissal.
I reiterate my findings above regarding the factors contained in s387(b), (c) and (e). I consider that Mr Glading was afforded procedural fairness. The PIP was clear, he had regular PIP meetings and also monthly one-on-one meetings with his manager. He was on notice that he had to meet his targets as part of the PIP process. He was given feedback and support during the PIP process and knew that a failure to meet targets might lead to his dismissal. He and Ms Argyrous discussed how he was tracking against his targets as part of that process.[85] He had an opportunity to raise concerns regarding the PIP process and the sales process and he took advantage of that opportunity. I consider that he was afforded “a fair go all round”.
Mr Glading did not specifically raise any other matters that he considered relevant to the question of whether or not the termination was harsh, unjust or unreasonable. However, I have given consideration to the issues that he raised in relation to whether his dismissal was for a valid reason, such as his concerns regarding the PIP process and not having been given sufficient opportunity to improve. I have also given consideration to other factors that were uncontentious and apparent on the evidence such as the length of Mr Glading’s service and that there was no allegation that Mr Glading had ever engaged in any misconduct while he was employed by the Respondent.
None of these matters persuade me to reach a conclusion that his dismissal was harsh, unjust or unreasonable in the circumstances.
Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable?
I have made findings in relation to each matter specified in section 387 as relevant.
I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.[86] There was a valid reason for the dismissal of Mr Glading, he was warned regarding his performance, notified of the reason for the dismissal and given a proper opportunity to respond. Other factors were largely neutral.
Having considered each of the matters specified in section 387 of the Act, for the reasons given above, I am satisfied that the dismissal of Mr Glading was not harsh, unjust and/or unreasonable. I am therefore not satisfied that Mr Glading was unfairly dismissed within the meaning of section 385 of the Act. The Application is dismissed.
An order to this effect will issue with this decision.[87]
DEPUTY PRESIDENT
Appearances:
N. Glading on his own behalf
S. Thirukumar and M Roberts on behalf of the Respondent
Hearing details:
2025.
Sydney.
28 July.
[1] Exhibit R2, Digital Hearing Book pg 143-148, Statement of Ms. Billie Argyrous [7].
[2] Exhibit R4, Digital Hearing Book pg 169, Annexure ML04 to Statement of Mr Matthew Lang.
[3] Exhibit R2, Digital Hearing Book pg 143-148, Statement of Ms. Billie Argyrous [19].
[4] Ibid [10].
[5] Exhibit R2, Digital Hearing Book pg 154, Annexure BA-01 to Statement of Ms Billie Argyrous.
[6] Exhibit R2, Digital Hearing Book pg 143-148, Statement of Ms. Billie Argyrous [15].
[7] Exhibit A2, Digital Hearing Book pg 91, Performance Improvement Plan Cover Letter 2025.
[8] Exhibit A2, Digital Hearing Book pg 92, Performance Improvement Plan 2025.
[9] Ibid.
[10] Exhibit R3, Bundle of Documents under Order to Produce, pg 26, Ms Argyrous’s notes.
[11] Exhibit A2, Digital Hearing Book pg 83, Email to Ms Argyrous from Mr Glading.
[12] Ibid; Transcript PN458-PN461, Transcript PN535-PN536.
[13] Exhibit A3, Digital Hearing Book pg 28-29, Statement of Mr Nicholas Glading.
[14] Exhibit A2, Digital Hearing Book pg 87-88, Termination Letter.
[15] Sayer v Melsteel Pty Ltd [2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].
[16] Exhibit A2, Digital Hearing Book pg 83, Email to Ms Argyrous from Mr Glading.
[17] Transcript PN196.
[18] Transcript PN231.
[19] Transcript PN98-99; Transcript PN101-PN103.
[20] Exhibit A2, Digital Hearing Book pg 83, Email to Ms Argyrous from Mr Glading.
[21] Exhibit A3, Digital Hearing Book pg 30, Statement of Mr Nicholas Glading.
[22] Ibid 27.
[23] Ibid 28.
[24] Exhibit A2, Digital Hearing Book pg 63, Applicant’s outline of argument: merits.
[25] Exhibit A5, Digital Hearing Book pg 35, Statement of Mr Charles Ndibe 1.
[26] Ibid 2.
[27] Ibid 2; Ibid 5.
[28] Ibid 7.
[29]Exhibit A2, Digital Hearing Book pg 66, 68, Applicant’s outline of argument: merits.
[30] Exhibit R4, Digital Hearing Book pg 157, Statement of Mr Matthew Lang [21].
[31] Ibid [16].
[32] Exhibit R2, Digital Hearing Book pg 146, Statement of Ms Billie Argyrous [19].
[33] Exhibit R4, Digital Hearing Book pg 157, Statement of Mr Matthew Lang [23].
[34] Ibid 158, [27].
[35] Ibid 159 [34].
[36] Crozier v Australian Industrial Relations Commission [2001] FCA 1031, [14]. (‘Crozier’)
[37] J Boag and Son Brewing Pty Ltd v Button (2010) 195 IR 292, [2010] FWAFB 4022, [29].
[38] Exhibit R4, Digital Hearing Book pg 158, Statement of Mr Matthew Lang [30]; Digital Hearing Book pg 161-164, Annexure ML01 to Statement of Mr Matthew Lang.
[39] Exhibit R4, Digital Hearing Book pg 158, Statement of Mr Matthew Lang [31]; Digital Hearing Book pg 165, Annexure ML02 to Statement of Mr Matthew Lang; Digital Hearing Book pg 167, Annexure ML03 to Statement of Mr Matthew Lang.
[40] Exhibit R4, Digital Hearing Book pg 159, Statement of Mr Matthew Lang [32]; Digital Hearing Book pg 169, Annexure ML04 to Statement of Mr Matthew Lang.
[41] Exhibit R1
[42] Exhibit R2, Digital Hearing Book pg 144, Statement of Ms Billie Argyrous [11]; Digital Hearing Book pg 154, Annexure BA-01 to Statement of Ms Billie Argyrous.
[43] Exhibit A4, Digital Hearing Book pg 118, Response to Respondent’s submissions.
[44] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373; Sharp v BCS Infrastructure Support Pty Ltd [2015] FWCFB 1033, [25], quoting B, C and D v Australian Postal Corporation t/a Australia Post [2013] FWCFB 6191, [35].
[45] Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.
[46] King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213, [24].
[47] Pastrycooks Union v Gartrell White (No. 3) [1990] 35 IR 70, [84].
[48] Edwards v Justice Giudice (1999) 94 FCR 561; (1999) 169 ALR 89; [1999] FCA 1836, [7].
[49] Crozier (n 36) [14].
[50] Jetstar Airways Ltd v Neeteson-Lemkes[2013] FWCFB 9075; CSL Limited v Chris Papaioannou[2018] FWCFB 1005.
[51] Crozier v Palazzo Corporation Pty Ltd t/as Noble Park Storage and Transport, Print S5897 AIRCFB (2000), [62]. (‘Palazzo’)
[52] R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday (1938) 60 CLR 601, 621-622; CFMMEU v Mt Arthur Coal Pty Ltd[2021] FWCFB 6059, [67].
[53] [2021] FWCFB 6059.
[54] Ibid [72], quoting R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday (1938) 60 CLR 601, 622.
[55] Advanced Health Invest Pty Ltd v Chan[2019] FWCFB 5104, [43]; Jain v Infosys Limited[2014] FWCFB 5595, [35]-[36].
[56] Transcript PN982.
[57] Applying a methodology of adding each cell containing a figure for each broker and dividing this by the number of cells that contained a percentage figure for each employee.
[58] As against meeting his targets per Exhibit R-1.
[59] Transcript PN440.
[60] Transcript PN738.
[61] Annexure ML03 to the statement of Mr Lang records that two colleagues had fewer LNA 13-20 leads and four had more LNA 13-20 leads.
[62] Digital Hearing Book pg 165, Annexure ML02 to Statement of Mr Matthew Lang.
[63] Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429, [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533, [55].
[64] Palazzo (n 50) [73].
[65] Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).
[66] Ibid.
[67] Transcript PN502.
[68] Transcript PN504.
[69] Exhibit R2, Digital Hearing Book pg 147, Statement of Ms Billie Argyrous [26]-[27].
[70] Palazzo (n 50) [73].
[71] Royal Melbourne Institute of Technology v Asher (2010) 194 IR 1, [26] quoting Wilcox CJ in Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.
[72] Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.
[73] Exhibit R2, Digital Hearing Book pg 147, Statement of Ms Billie Argyrous.
[74] Transcript PN489-490; Transcript PN502-503.
[75] Transcript PN498.
[76] Transcript PN511.
[77] Transcript PN890.
[78] Crozier (n 36) [15].
[79] UES (Int’l) Pty Ltd v Harvey [2012] FWAFB 5241, [44].
[80] Fastidia Pty Ltd v Goodwin Print S9280 (AIRCFB, Ross VP, Williams SDP, Blair C, 21 August 2000), [43]-[44].
[81] Transcript PN717; Transcript PN721.
[82] Transcript PN723-724; Transcript PN796.
[83] Transcript PN987.
[84] Exhibit A2, Digital Hearing Book pg 91, Performance Improvement Plan Cover Letter 2025.
[85] Transcript PN412-415
[86] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]–[7].
[87] PR792812.
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